A Company and The Department of Education and Skills

Case Number: 170125

Whether the Department was justified in refusing to grant access to records created in connection with or relating to the designation of sites by Dún Laoghaire-Rathdown County Council (the Council) for primary and post-primary education facilities, pursuant to sections 29, 30 and 36 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

All references to "the applicant" in this decision can be taken to refer to the applicant and/or his solicitor, as appropriate. The applicant owns land within the Council's functional area. Some time after he purchased the land, it was designated for educational purposes by the Council. On 5 September 2016 the applicant made an FOI request to the Department. He sought records relating to the designation by the Council of sites for primary and post-primary education facilities, as set out in the Sandyford Urban Framework Plan 2011-2016 and the Dún Laoghaire Development Plan 2016-2022 (the Plans). His request referred to various documents including reports used to forecast demand for such facilities, submissions made by the Department in relation to both Plans, requests from the Department seeking the acquisition of such a site, records of meetings, site reports, minutes and lists of preferred sites.

The Department refused the applicant's request on 12 September 2016. It stated that the request as framed might be considered to be a voluminous request and could be refused on the basis of section 15(1)(c) of the Act. Nonetheless, it enclosed a copy of the following three documents relating to the matters at hand:

The Provision of Schools and the Planning System: A Code of Practice for Planning Authorities, the Department of Education and Science...etc, July 2008
The Department's submission to the draft DLR County Development Plan 2016-2022, dated 22 December 2015
A letter from the Department to the Council requesting the identification of a suitable site for a new primary school to serve Goatstown-Stillorgan, dated 29 October 2015

The Department also provided the applicant with a four point summary of the records it stated it held relating to his request. It said that it held no records relating to his site created before 23 February 2016. It also stated that the records identified could be considered for release if he wished, and invited him to narrow his request so that it no longer fell to be refused under section 15(1)(c).

On 26 October 2016, the applicant agreed to limit his request to the records set out in the Department's letter, in reliance on the Department's confirmation that it held no relevant records pre-dating 23 February 2016. He said that this was subject to the Department confirming that it made no submission to the Council in relation to the designation of his land in respect of the Framework Plan.

The Department issued a decision on 8 November 2016, identifying 29 records to which it refused access on the basis of section 29 - deliberations of public bodies (Records 1-29), section 30(1)(c) - functions and negotiations of public bodies (Records 1-29) and section 36(1)(c) - commercially sensitive information (Records 6, 21, 22 and 28). It did not explain its reliance on these provisions of the Act; neither did it demonstrate any consideration of the public interest in favour of release of the records concerned.

The applicant requested an internal review of the Department's decision on 1 December 2016. He was of the view that the Department had not adequately explained its refusal, as required by section 13(2)(d)(i) of the Act. He made extensive arguments relating to each of the exemptions cited by the Department and contended that the public interest favoured release of the records concerned. The Department's internal review decision on 23 December 2016 affirmed its original decision on the same basis. The internal reviewer stated in relation to each exemption that he considered that, on balance, the public interest lay in withholding the information concerned, although he did not set out the factors considered in favour of release.

On 13 March 2017, the applicant made an application to this Office for a review of the Department's decision. He again set out extensive arguments in support of his application. The applicant reserved his right to make a submission in this case until he was on notice of the Department's submission in support of its decision. I note that Ms Sandra Murdiff, Investigator in this Office, contacted the applicant on 19 May 2017 and informed him that the Department was relying specifically on sections 29, 30(1)(c) and 36(1)(c) of the FOI Act for its refusal. She outlined the Department's submission in support of its decision. I also note that Ms Murdiff informed the applicant of her view that the Department was justified in its decision to refuse to grant access to the records concerned on the basis of sections 30(1)( c) and 36(1)(c) of the FOI Act. She was also of the view that as there had been no expenditure of public funds, on balance, the public interest did not favour release of the records concerned. The applicant indicated in his submission dated 31 May 2017 that he did not agree with Ms Murdiff's views. Accordingly, I have decided to conclude this case by way of a formal binding decision.

In conducting this review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department, as well as the contents of the records concerned.

Preliminary Matters

I note that Ms Murdiff informed the applicant of her view that records post-dating his FOI request were outside the scope of this review. The applicant argued that there was no basis for this in the FOI Act and contended that his request should cover all records in existence at the date the decision was made by the Department. He stated that there was no practical reason to limit his request where relevant records clearly existed. He further argued that such a limitation would go against the purpose of the Act which is to grant access to information held by public bodies to the greatest extent possible, and that the only effect of such a limitation would be to require him to make a second request. He went on to say that this would potentially delay the ultimate decision on those records by several months, which would be irrational, disproportionate and unsupported by statute.

While I note the applicant's arguments, it is well established that the FOI Act provides for a right of access only to records that exist at the time of the request. This is evident from the wording of Section 12(1) of the FOI Act, which sets out the manner in which an FOI request must be made:

"A person who wishes to exercise the right of access shall make a request, in writing or in such other form as may be determined, addressed to the head of the public body concerned for access to the record concerned --

(a) stating that the request is made under this Act,
(b) containing sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps... "

This Office takes the view that the wording of Section 12, and, in particular of clause (b), clearly indicates that a request can only be made for a record which was in existence at the time of the request. Accordingly, as Records No. 25-29 in the Record Schedule provided by the Department did not exist when the applicant submitted his FOI request, I am of the view that they are outside the scope of this review. The applicant is free to make a fresh FOI request for more recent records if he wishes.

I also note that the applicant has referred at length to the background of this case and the reasons he is seeking access to the records concerned. However, section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

Finally, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

I would like to draw the Department's attention to its obligations under section 13 of the FOI Act to provide reasoned decisions. The Department's original decision merely set out the exemptions relied upon, with no explanation why or demonstration of its consideration of the public interest. Furthermore, its internal review decision did not explain how the exemptions applied, particularly in regard to sections 30 and 36. It also did not demonstrate that it had engaged in the public interest balancing test required under section 30 or 36 other than to state that it had considered it. In this regard, I encourage decision makers to use the FOI resources available, including guidance on the FOI Act published by the Central Policy Unit of the Department of Public Expenditure and Reform and by my Office, to assist them in their decision-making and in ensuring that their decisions comply with their obligations under the Act.

Scope of Review

The applicant sought records relating to the designation of land for educational purposes, including reports used to forecast demand for such facilities, submissions made by the Department in relation to both Plans, requests from the Department seeking the acquisition of such a site, records of meetings, site reports, minutes and lists of preferred sites. As the Department maintains it was not concerned with the designation of the land for educational purposes some, if not all, of the records identified by the Department as relating to his request appear not to be relevant. However, in the absence of any argument that the records fall outside the scope of the request, I have proceeded on the basis that that Department considers the records to be relevant to the applicant's request.

Accordingly, this review is solely concerned with whether the Department was justified in this decision to refuse access to Records 1-24 on the basis of sections 29, 30 and 36 of the FOI Act.

Analysis and Findings

The Department relied on sections 29, 30(1)(c) and 36 of the FOI Act in refusing to grant access to the records at issue. I am of the view that section 30(1)(c) is the most relevant to the records at issue in this case, so I shall consider this exemption first.

Section 30(1)(c) - Functions and negotiations of FOI bodies
Section 30(1)(c) provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.

Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not contain a harm test and records relating to past, present or future negotiations may be protected under section 30(1)(c). However, previous decisions of this Office have found that FOI bodies should identify the relevant negotiations at issue and show that releasing the records could reasonably be expected to disclose positions taken for the purpose of those negotiations.

The records at issue comprise site assessment reports, valuations, internal memos, minutes and discussions of offers to be made to the applicant to purchase his land. The records reveal the consideration of various options for a site for a new school and the likely price the Department would be expected to pay, either on the open market or by way of a compulsory purchase order. Furthermore, the Department has stated that while the negotiations with the applicant are currently on hold, the alternative site it chose for the school is subject to planning permission. It stated that if its planning application is unsuccessful, or if a requirement for another school site in the same area arises in the near future, negotiations were likely to be restarted. It argued that release of the records concerned would reveal the Department's position in the initial negotiations and therefore its likely position in any future or restarted negotiations. While future negotiations may or not not arise, I am satisfied that at the very least these records disclose positions taken, as well as plans, procedures, criteria used or followed for the purpose of negotiations which were carried on, on behalf of the Department. Accordingly, I find that section 30(1)(c) applies to these records.

Public Interest
I am then required to apply the public interest balancing test under section 30(2) of the FOI Act. On the one hand, section 30(1)(c) itself reflects the public interest in protecting procedures followed and positions taken by FOI bodies for the purpose of negotiations. On the other hand, section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters, including the need to achieve greater openness in their activities and to strengthen their accountability and decision-making.

The Applicant
As noted above, subject to the provisions of the FOI Act, I am required to disregard the applicant's reasons for his FOI request. Therefore, I can only take into account the purpose for which he seeks this information to the extent that it comprises a public interest.

The applicant argued that there was a general public interest in transparency and allowing scrutiny of decisions which relate to the suitability of sites for educational purposes to be acquired with public money. He stated that the public had the right to know that an open and carefully considered process has been followed in the selection of sites for such purpose. He also argued that there was a specific public interest in ensuring that individuals whose land is designated for public purposes are able to verify that the process for acquisition is conducted in a proper and lawful manner. He contended that disclosure of this information would "protect property owners against arbitrariness in decision-making processes" and would make it more likely that "such outcomes will be respected as fair and transparent". He stated that he had identified a specific lacuna in the site selection process that he hoped to resolve through this FOI request (and a similar request to the Council). Finally, the applicant stated that the Oireachtas was considering the creation of a Planning Regulator with the power to review local authority plans, including designations of the kind affecting him. He argued that this clearly demonstrated the public interest in allowing greater scrutiny of how the Council reached its decision on the designation of his site for educational purposes.

The Department

In its submission to this Office, the Department argued that its ability to achieve value for money when spending public funds would be prejudiced by release of the records concerned. Essentially, it argued that release would most certainly result in a significant increase in the purchase price of suitable land as the landowner(s) became aware of the various matters at issue which drove the Department's decision. The Department's position is that the negative impact the release of the records would have on its ability to achieve value for money significantly outweighs any public interest in release of the records at issue.

It appears that the Council indicated that it based its decision to designate the applicant's land for educational purposes partly on the basis of the Department identifying the site as a suitable location. However, the Department has stated that it was not involved in this decision, and that due to resource issues it did not make submissions in relation to the draft version of the 2011 Plan. During the course of this review, the Department provided a copy of letters dated 14 May 2014 and 11 May 2015 from the Department to the Council in relation to a proposed review of the 2010-2015 Plan and the upcoming 2016-2022 Plan to this Office. I can confirm that neither these, nor the Department's submission in relation to the draft 2016 Plan referred to the applicant's site in any way. While the applicant is of the view that this contradicts the Council's account of events, the Department has stated that it did not designate the applicant's land for educational purposes and that it did not request the Council to do so. In any event, I can confirm, having reviewed the records at issue, that all of the records under consideration in this case post-date both Plans and that none contain a reference to the designation of his land.

Analysis

On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 (the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.

The applicant has made much of his reasons for seeking access to the records at issue, however, it seems to me to essentially come down to his desire to ascertain who made the decision to designate his land for educational purposes. While the FOI Act recognises the public interest in ensuring the openness and accountability of public bodies, the applicant's motives for seeking the information at issue seems to me to demonstrate a private interest rather than a public one.

The Department has informed this Office that it has decided to build the school on a site it already owns. Accordingly, while there is a public interest in openness and transparency in relation to the expenditure of public funds, no public funds have been spent on land purchase as yet. Furthermore, I am of the view that an FOI body is generally entitled to conduct an information gathering exercise, discuss options, make a decision, take a position and negotiate with property owners, etc., without having to reveal those details in a case where a purchase was not made but might yet be made. I accept that the information in the records concerned could inform the applicant, or other landowners, of the extent to which the Department had considered their property and what it was willing to pay for it. While I also accept the applicant's point that this is not strictly current information, the records at issue were all created in the last year. In my view, even if the figures would be different if negotiations started today, the records would reveal the criteria for a suitable site, the range of prices considered and the bargaining position(s) the Department would be likely to adopt.

On balance, I consider that the public interest would be better served by refusing to grant access to these records. The Department negotiates and purchases land for schools on an ongoing basis. This involves the management and expenditure of public funds. In the circumstances, I believe that the public interest in protecting the Department's negotiating procedures, to enable it to obtain the greatest value for money possible, outweighs the public interest in openness around its functions. Furthermore, I see nothing in the records concerned that would shed any light on the Council's decision, as sought by the applicant.

I have also considered if the records I have found to be fully exempt could be partially released. However, I do not consider it in keeping with section 18 to direct the release of any brief excerpts that might not in their own right be exempt. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). It is also relevant that the Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs.

Having regard to the above, I find that the Department was justified in refusing to release Records 1-24 to the applicant on the basis of section 30(1)(c) of the FOI Act. As I have found the records to be exempt under section 30(1)(c), I do not need to consider any other of the exemptions relied upon by the Department.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Department's decision to refuse to release Records 1-24 on the basis of section 30(1)(c) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.